End-User License Agreement for Trial Use of CAPSTORM, LLC (“CAPSTORM”) SOFTWARE _______________________________________
Effective Date: April 14, 2023
Please read this end-user license agreement (“EULA”) carefully. This EULA is between you and CapStorm, LLC and its affiliates (“CapStorm,” “we,” “us,” or “our”) and governs your access to and use of our Software. You may enter into this EULA on behalf of yourself or on behalf of a legal entity. If you enter into this EULA on behalf of a legal entity, you represent that you are a duly authorized representative with the authority to bind that legal entity to this EULA. All references to “you” and “your” in this EULA mean the person accepting this EULA as an individual or the legal entity for which the representative is acting. Capitalized terms in this EULA will have definitions as set forth in the applicable section where they are defined or in Section 26 below.
You may only use the Software in accordance with the terms and subject to the conditions of this EULA.
READ THIS EULA CAREFULLY, AS IT PROVIDES, AMONG OTHER THINGS: (i) in Section 21, that you and CapStorm will arbitrate certain claims instead of going to court and that you will not bring class-action claims against CapStorm; (ii) in Section 11, that CapStorm may make modifications, deletions, and additions to these Terms of Service and our Service Description; and (iii) in Section 20, that you release CapStorm from, and waive your right to recover from CapStorm, certain damages. You acknowledge that you will only use the Software if you agree to be legally bound by all terms and conditions herein. Your acceptance of this EULA creates a legally binding contract between you and CapStorm.
ACCOUNT INFORMATION; SHARING
1.1 Registration; Username and Passwords. You may be required to provide information about yourself to register for and to access or use the Software. You represent and warrant that any such information, including Customer Data, is and will remain accurate and complete, and that CapStorm has no liability whatsoever for errors and omissions in your Customer Data. You may also be asked to choose a username and password to access or use the Software. We may reject, or require that you change, any such username or password, in our sole discretion. You are entirely responsible for maintaining the security of your username and password, and you agree not to disclose or make your username or password accessible to any third party
1.2 Prohibition on Sharing. You may not share an account or any other user rights with any other individual, unless otherwise expressly pre-approved by CapStorm in writing. You may not share any login credentials or passwords regarding the foregoing with any other individual. You acknowledge that sharing of any such rights is strictly prohibited. Your right to use or access the Software is personal to you and not assignable or transferable. You may not assign or transfer any account or any other user rights with any other individual, except upon (i) an individual termination of employment or relationship with their employer, as applicable, or (ii) CapStorm’s prior express written approval.
ACCESS AND USE; SOFTWARE LICENSE
2.1 Access and Use; Software License. Subject to the terms and conditions of this EULA, you may access and use, during the Trial Use Term, the Software made available by CapStorm for a Trial Use. If access to or use of any portion of the Software requires or allows for you to download, use, or install software (“Software”), CapStorm grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license to use the Software in object code format on a compatible device for your internal use only, solely to evaluate the Software on a trial basis, and solely to access and use the Software during the applicable Trial Use Term. You acknowledge and agree that your access to and use of the Software under this Section 3.1 (and as otherwise provided in this EULA) is revocable in CapStorm’s sole discretion at any time.
2.2 Documentation License. Subject to the terms and conditions in this EULA, CapStorm grants you a limited, revocable, non-exclusive, non-transferable, non-assignable, non-sublicensable, and royalty-free license for you to use CapStorm -provided product and services documentation (“Documentation”) solely for your internal business purposes in connection with your use of the Software during the Trial Use Term.
2.3 Ownership. You acknowledge that, notwithstanding anything to the contrary herein, the Software and Documentation is provided to you under a limited license, and neither has been sold to you. You also acknowledge that you have neither obtained nor will obtain any ownership or other right, title, or interest in or to the Software or Documentation or any Proprietary Rights relating thereto. Any copies of Software will remain the exclusive property of CapStorm. The Software may include code that is licensed to you under third party license agreements, including open source software made available or provided with the Software. Without limiting the generality of the foregoing, CapStorm owns all right, title, and interest in and to all upgrades, enhancements, new releases, changes, and modifications to the Software, together with all ideas, architecture, algorithms, models, processes, techniques, user interfaces, database design and architecture, and “know-how” embodying the Software. Under no circumstances will you be deemed to receive, have, or be granted title to all or any portion of the Software or Documentation, title to which at all times vests exclusively in CapStorm. None of the Software or Documentation, or any component thereof, is or shall be deemed to be a “work made for hire,” as that term is defined in 17 U.S.C. § 101.
RESPONSIBILITY FOR USE AND END USERS
3.1 Use of the Software; End User Responsibility. You will, and you will cause your End Users to, abide by and ensure compliance with, all the terms and conditions of this EULA. Use of the Software is void where prohibited. You are responsible for your and your End Users’ access to and use of the Software. You are responsible for the activities of all your End Users, including ensuring that all End Users will comply with the terms and conditions of this EULA and any applicable CapStorm policies. You acknowledge that you remain liable for the acts and omissions of any third party that you allow, enable, or otherwise provide access to the Software, whether or not such access was expressly permitted by CapStorm.
3.2 Violations by End Users or Third Parties. CapStorm assumes no responsibility or liability for violations of this EULA by End Users or any other third party that you allow, direct, or enable to access the Software. If you become aware of any violation of this EULA in connection with use of the Software by any person, you must contact CapStorm at firstname.lastname@example.org.
3.3 Liability for Content and Data. Under no circumstances will CapStorm be liable in any way for any data or other content copied, accessed, or viewed while using the Software, including any errors or omissions in any such data or other content, or any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to any data or other content.
3.4 Investigation of Use. CapStorm may investigate any complaints and violations that come to our attention and may take any action, in its sole discretion, including issuing warnings, suspending or disconnecting the Software, removing the applicable data or other content, terminating accounts or End User profiles, or taking other reasonable actions in its sole discretion.
SYSTEM REQUIREMENTS; CHANGES
Your use of the Software requires you to provide one or more compatible devices, Internet access, and certain third-party software, and you may be required to obtain updates or upgrades from time to time for Software or third-party software, which may result in additional costs to you. Because use of the Software involves hardware, software, and Internet access, your ability to access and use the Software may be affected by the performance of the foregoing. High-speed Internet access is recommended. You are solely responsible for any fees that may apply to your access to or use of the Software, including fees for hardware, software, Internet access, or text messages. You agree that the foregoing requirements are your responsibility, and CapStorm may, in its sole discretion, discontinue availability or compatibility of the Software, on a particular operating system, device, or platform.
You agree that you will not, and will not permit anyone to, directly or indirectly: (i) modify, customize, disassemble, decompile, prepare derivative works of, create improvements, derive innovations from, reverse engineer, or attempt to gain access to any underlying technology of the Software, including any source code, process, data set or database, management tool, development tool, server or hosting site; (ii) knowingly or negligently use the Software in a way that abuses, interferes with, or disrupts CapStorm’s networks, your account, or any other user rights, or any services by CapStorm; (iii) engage in activity that is illegal under applicable Law, fraudulent, false, or misleading; (iv) transmit through the Software any material that may infringe, misappropriate, or violate the Proprietary Rights of third parties; (v) build or benchmark a competitive product or service, or copy any features, functions, or graphics of the Software; (vi) use the Software for the development, production, or marketing of a service or product substantially similar to the Software; (vii) use the Software to communicate any message or material that is harassing, libelous, threatening, obscene, indecent, would infringe or violate the Proprietary Rights of any party, or is otherwise unlawful, or would give rise to civil or criminal liability, under any applicable Law; (viii) upload or transmit any software, Customer Data, or code that does or is intended to harm, disable, destroy, or adversely affect performance of the Software in any way or which does or is intended to harm or extract information or data from other hardware, software, networks, or other users of the Software; (ix) engage in any activity or use the Software in any manner that could damage, disable, overburden, impair or otherwise interfere with or disrupt the Software or any servers or networks connected to the Software or CapStorm’s security systems; (x) use the Software in violation of any CapStorm policy or in a manner that violates applicable Law, including anti-spam, import and export control, intellectual property, privacy, anti-terrorism, anti-bribery, foreign corrupt practices, and any other Laws requiring the consent of subjects of audio and video recordings; (xi) remove, delete, alter, or obscure any Proprietary Rights notices provided on or with the Software, including any copy thereof; (xii) make, use, or offer the Software for lease, rent, or sale, or reproduce, resell, distribute, publish, display, assign, transfer, sublicense, lend, use on a timeshare or service bureau basis, or use the Software for any commercial or other purpose that is not expressly permitted by this EULA; or (xiii) make available the Software, or any features or functionality thereof, to any third party for any reason or by any manner, unless expressly permitted by this EULA or otherwise expressly agreed to in writing by you and CapStorm.
COMPLIANCE WITH LAWS
You are solely responsible for your and your End Users’ compliance with all Laws that apply to your and your End Users’ access to and use of the Software, including Laws requiring you to provide proper End User notifications and to obtain proper End User consents, which may be necessary to allow you to access, use, and share Customer Data. You shall comply with, and ensure that all End Users comply with, all applicable Laws in connection with your obligations under this EULA, including access to and use of the Software.
7.1 Customer Data. You or your End Users may provide, upload, download, or originate data, content, files, documents, or other materials (collectively, “Customer Data”) in accessing or using the Software. No Customer Data provided, created, or made available by the Software or CapStorm results in any conveyance, assignment, or other transfer of CapStorm’s Proprietary Rights contained or embodied in the Software, or other technology or services used to provide, create, or make available any Customer Data in any way and CapStorm retains all Proprietary Rights therein. You further acknowledge that any Customer Data provided, created, or made available to you by the Software or CapStorm is for your or your End Users’ sole access and use, and that you are solely responsible for Customer Data.
7.2 Service Generated Data; Consent to Use. Customer Data does not include any telemetry data, product usage data, diagnostic data, and similar content or data that CapStorm collects or generates in connection with your or your End Users’ use of the Software (“Service Generated Data”). As between you and CapStorm, all right, title, and interest in and to Service Generated Data, and all Proprietary Rights therein, belong to and are retained solely by CapStorm. You agree that CapStorm compiles and may compile Service Generated Data based on use of the Software. You consent to CapStorm’s access, use, collection, creation, modification, distribution, processing, sharing, maintenance, and storage of Service Generated Data for any purpose, to the extent and in the manner permitted under applicable Law, including for the purpose of product and service development, marketing, analytics, quality assurance, machine learning or artificial intelligence (including for the purposes of training and tuning of algorithms and models), training, testing, improvement of the Software or CapStorm’s other products, services, and software, or any combination thereof, and as otherwise provided in this EULA. In furtherance of the foregoing, if, for any reason, there are any rights in such Service Generated Data which do not accrue to CapStorm under this Section or as otherwise provided in this EULA, you hereby unconditionally and irrevocably assign and agree to assign to CapStorm on your behalf, and you shall cause your End Users to unconditionally and irrevocably assign and agree to assign to CapStorm, all right, title, and interest in and to the Service Generated Data, including all Proprietary Rights relating thereto.
7.3 Customer License Grant. If you have any Proprietary Rights in or to Service Generated Data or Aggregated Anonymous Data, you hereby grant CapStorm a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, sublicensable, and transferable license and all other rights required or necessary to enable CapStorm to exercise its rights pertaining to Service Generated Data and Aggregated Anonymous Data, as the case may be, in accordance with this EULA.
7.6 Customer Responsibilities, Acknowledgement, and Consents. You agree that you are solely responsible for the Customer Data sent, uploaded, downloaded, displayed, or transmitted in the use of the Software, including its accuracy, and for compliance with all Laws pertaining to the Customer Data, including Laws requiring you to obtain the consent of a third party to use Customer Data and to provide appropriate notices of third party rights. You represent and warrant that you have the right to send, upload, download, display, or transmit Customer Data and for the Software or CapStorm to provide, create, or make available any Customer Data to you, and that such use or provision by you, your End User, or CapStorm does not violate or infringe any rights of any third party. Under no circumstances will CapStorm be liable in any way for (i) your Customer Data that is sent, uploaded, downloaded, displayed, transmitted or viewed while using the Software, (ii) errors or omissions in the Customer Data, or (iii) any loss or damage of any kind incurred as a result of the use of, access to, or denial of access to Customer Data. As between you and CapStorm, you retain all ownership rights in the Customer Data, subject to any license or other rights granted herein, and without limiting any of CapStorm’s Proprietary Rights set forth herein.
You affirm that you are of legal age to enter into this EULA and to use the Software. You affirm that you are otherwise fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in this EULA. Your access may be terminated without warning if it comes to our attention that you are under the legal age to enter into this EULA or are otherwise ineligible to enter into this EULA or to use the Software.
You represent and warrant that CapStorm is not responsible for collection of or payment of any Taxes and Fees related to this EULA. You will pay, and you are solely responsible for, any applicable Taxes and Fees.
TERM; TERMINATION AND SUSPENSION
10.1 Trial Use Term. The Trial Use Term of this EULA will be for fourteen (14) calendar days from your first access to the Software. You acknowledge and understand that the Trial Use Term will not be extended or renewed under any circumstances.
10.2 Customer Termination. You may terminate this EULA at any time by providing written notice of termination to CapStorm.
10.3 CapStorm Termination Rights and Suspension. Notwithstanding anything to the contrary herein, CapStorm may, for any reason or no reason, without notice to you: (i) immediately suspend your access to the Software, or (ii) terminate this EULA, effective immediately.
10.4 Effect of Termination or Suspension. Upon any termination of this EULA or suspension of your access to the Software, you must cease any further use of the Software.
MODIFICATIONS TO THIS EULA
11.1 General Changes. CapStorm may make modifications, deletions, and additions to this EULA (“Changes”) from time to time in accordance with this Section. Changes to this EULA will be posted on CapStorm’s Website, which you should regularly check for the most recent version and also save the most up to date version in your files. Changes to this EULA do not create a renewed opportunity to opt out of arbitration (if applicable). If you continue to use the Software after the effective date of the Changes, then you agree to the revised terms and conditions. In some instances, CapStorm may notify you of a Change and also may request express confirmation of your consent to a Change. If a Change requires a specific notice pursuant to applicable Law, CapStorm will provide you with such notice in the manner prescribed by applicable Law, together with any required notification of your rights.
11.2 Other Changes. You agree that CapStorm may modify, delete, and make additions to its guides, statements, policies, and notices, with or without notice to you, and for similar guides, statements, policies, and notices applicable to your use of the Software by posting an updated version on the applicable webpage.
11.3 Change Notifications. It is your responsibility to keep your email address up to date for any notices that CapStorm may send to you from time to time.
CAPSTORM PROPRIETARY RIGHTS; FEEDBACK
12.1 Feedback. If you or any of your employees, contractors, agents, or End Users send, transmit, or otherwise provide any feedback, comments, suggestions, questions, or the like, regarding any CapStorm services and the Software, including any ideas, know-how, concepts, enhancements, recommendations, or other information relating to the Software, including suggesting or recommending changes to the Software such as new features or functionality relating thereto (collectively, “Feedback”), you acknowledge that (i) CapStorm owns, and CapStorm shall retain ownership of, all right, title, and interest in and to such Feedback, including any Proprietary Rights therein, and (ii) CapStorm may, but is not required to use, the Feedback, including any Proprietary Rights therein, for any purpose whatsoever without any attribution, financial compensation, or reimbursement of any kind to you or any third party. You hereby unconditionally and irrevocably assign and agree to assign to CapStorm on your behalf, and you shall cause your employees, contractors, agents, and End Users to unconditionally and irrevocably assign and agree to assign, all right, title, and interest in and to the Feedback, including all Proprietary Rights relating thereto. All Feedback is and will be treated as CapStorm Confidential Information until CapStorm, in its sole discretion, chooses to make any specific Feedback non-confidential.
12.2 Ownership of CapStorm Property. CapStorm, its affiliates, its licensors, and suppliers (as applicable) own and shall retain ownership of (i) all Service Generated Data (as provided in Section 7.2), (ii) all Feedback (as provided in Section 12.1), (iii) the Software, and any underlying or other technology and intellectual property embodied or contained in, used to provide or support or services, or otherwise associated or provided in connection with, the Software, including all Proprietary Rights related thereto, and (iv) all trade names, trademarks, service marks, trade dress, logos, icons, insignia, symbols, interface and other designs, domain names and corporate names, and the like (whether registered or unregistered) (“CapStorm Marks”) associated or displayed with the Software, together with the goodwill associated with any of the foregoing CapStorm Marks (all of the foregoing, collectively “CapStorm Property”). You may not frame or utilize framing techniques to enclose any CapStorm Marks, or other proprietary materials or information (including images, text, page layout, or form) of CapStorm without our express prior written consent. You may not use any meta tags or any other “hidden text” utilizing CapStorm Marks without our express prior written consent. No rights to use the CapStorm Marks are provided to you herein.
12.3 Reservation of Rights. CapStorm reserves all rights not expressly granted to you in this EULA. Except for the limited rights and licenses expressly granted under this EULA, nothing in this EULA grants, by implication, waiver, estoppel, or otherwise, to you or any third party, any Proprietary Rights or other right, title, or interest in or to any CapStorm Property or other intellectual property provided in connection with this EULA or the Software.
13.1 Definition. “Confidential Information” means: (i) with respect to CapStorm, any information disclosed by, for, or on behalf of CapStorm, directly or indirectly, to you or any End User in connection with this EULA, the Software, or learned or accessed by you or any End User in connection with the Software, including business information, services, development plans, product roadmap details, systems, strategic plans, source code, services, products, pricing, methods, processes, financial data, programs, trade secrets, know-how, and marketing plans, however it is conveyed in any form or medium, together with all information derived from the foregoing, and any other information that is designated as being confidential (whether or not it is marked as “confidential”) or which is known by you or the End User or reasonably should be understood by you or the End User to be confidential (“CapStorm Confidential Information”); and (ii) with respect to you, any information disclosed by you to CapStorm that (a) must be kept confidential pursuant to applicable Law or (b) is sensitive security and technical information that is clearly and conspicuously marked as “confidential” by you (“Customer Confidential Information”).
13.2 Exclusions. Confidential Information does not include information that: (i) is already rightfully known to the receiving party at the time it is received, free from any obligation to keep such information confidential; (ii) becomes publicly known or available through no act or omission of the receiving party or any third party; (iii) is rightfully received from a third party without restriction and without breach of this EULA; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information.
13.3 Obligation of Confidentiality. You and CapStorm shall take reasonable steps to maintain the confidentiality of each other’s Confidential Information using measures that are at least as protective as those taken to protect its own information of a similar sensitivity, but in no event using less than a reasonable standard of care. Neither you nor CapStorm will disclose the other party’s Confidential Information to any person or entity except to its employees, advisors, and attorneys who have a strict need to know the information in connection with this EULA and who are bound by confidentiality obligations at least as protective as the provisions herein. In addition to the foregoing permitted disclosures, CapStorm also may disclose Customer Confidential Information to its consultants, contractors, service providers, subprocessors, and other third parties who are bound by confidentiality obligations at least as protective as the confidentiality provisions herein.
13.4 Permitted and Compelled Disclosures. Notwithstanding the restrictions in this Section and without limiting any other rights of CapStorm, we may disclose Customer Confidential Information received in connection with this EULA or Software to the extent authorized or as required by applicable Law; provided, however, that CapStorm will first notify you, unless providing such notice or timely notice is: (i) prohibited by applicable Law; or (ii) determined by CapStorm in its sole discretion to be (a) a risk or potential risk of harm to a person or to the health of a person, (b) a risk or potential risk of damage to property, (c) an emergency, or (d) a threat to the Software or CapStorm’s rights or property.
THIRD PARTY PROPRIETARY RIGHTS
You agree to not, and to not permit any End User to, post, modify, distribute, or reproduce in any way in connection with your or your End Users’ use of the Software any copyrighted material, trademarks, or other proprietary material that may infringe, misappropriate, or otherwise violate another’s Proprietary Rights without obtaining the prior written consent of the owner of the Proprietary Rights. You represent and warrant that you are either the author of all Customer Data to be uploaded, downloaded, or transmitted under this EULA or have obtained and hold all rights necessary to provide such Customer Input and receive all Customer Data in the form provided by the Software or CapStorm, in connection with your or your End Users’ use of the Software.
MEDICAL DEVICE; HIPAA
You agree that the Software provided under this EULA does not include, constitute, or otherwise consist of any medical device, product, or service cleared or approved by the U.S. Food and Drug Administration and are not intended for use in the diagnosis of, cure of, mitigation of, treatment of, or prevention of, any diseases, ailments, or conditions. You acknowledge and agree that CapStorm is not your “business associate,” as that term is defined in 45 C.F.R. §160.103, and you represent and warrant that you have not and will not disclose any “protected health information,” as that term is defined in 45 C.F.R. §160.103, to CapStorm.
THIRD-PARTY INTEGRATIONS AND OFFERINGS
The Software may interoperate, integrate, or be used in connection with third party offerings and services (“Third-Party Offerings”). CapStorm is not responsible for, and CapStorm hereby disclaims any liability for, any act or omission of any provider of Third-Party Offerings or the operation of any Third-Party Offerings, including access to, modification of, or deletion of data, regardless of whether CapStorm endorses, approves, or supports any such Third-Party Offerings. CapStorm does not guarantee the interoperation, integration, or support of any Third-Party Offerings. CapStorm may, at any time, in its sole discretion, modify the Software, which may result in the failed interoperation, integration, or support of Third-Party Offerings. You have sole discretion whether to purchase or connect to any Third-Party Offerings, and your use of any Third-Party Offering is governed solely by the terms of such Third-Party Offerings.
You acknowledge that the Software, or a portion thereof, are subject to the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and may be subject to other applicable country export control and trade sanctions Laws, including the Export Administration Regulations, 15 C.F.R. Parts 730-774 of the United States, and programs maintained by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control and Sanctions Laws”). CapStorm will provide the U.S. export classification(s) applicable to its Software upon request. You and your End Users may not access, use, export, re-export, divert, transfer, or disclose any portion of the Software or any related technical information or materials, directly or indirectly, in violation of Export Control and Sanctions Laws. You represent and warrant that: (i) you and your End Users (a) are not citizens of, or located within, a country or territory that is subject to U.S. trade sanctions or other significant trade restrictions (including Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk and Luhansk regions of Ukraine) and that you and your End Users will not access or use the Software, or export, re-export, divert, or transfer the Software, in or to such countries or territories; (b) are not persons, or owned or controlled by 50% or more, individually or in the aggregate, by persons, identified on the U.S. Department of the Treasury’s Specially Designated Nationals and Blocked Persons List or Foreign Sanctions Evaders Lists or any similar applicable list maintained by a country’s regulatory authority; and (c) are not persons on, affiliates of persons on, the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List, or U.S. Department of State proliferation-related lists; (ii) you and your End Users located in Belarus, Myanmar (Burma), Cambodia, China, Russia, or Venezuela are not Military End Users and will not put CapStorm Software to a Military End Use, as defined in 15 C.F.R. 744.21; (iii) no Customer Data disclosed, uploaded, downloaded, transmitted or shared by you or your End Users is subject to any restriction on disclosure, transfer, download, export or re-export under the Export Control and Sanctions Laws; and (iv) you and your End Users will not take any action that would constitute a violation of, or be penalized under, U.S. antiboycott laws administered by the U.S. Department of Commerce or the U.S. Department of the Treasury. Any list of countries specifically included in this clause will be deemed to be updated to the extent that any country or territory is added or removed under the Export Control and Sanctions Laws. You are solely responsible for complying with the Export Control and Sanctions Laws and monitoring them for any modifications.
YOU AGREE THAT ANY SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND CAPSTORM, ITS AFFILIATES, SUPPLIERS, AND LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. CAPSTORM, ITS AFFILIATES, SUPPLIERS, AND LICENSORS MAKE NO GUARANTEE, PROMISE, WARRANTY, OR REPRESENTATION (i) REGARDING THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF ANY SERVICES OR SOFTWARE, (ii) REGARDING THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH ANY SERVICES OR SOFTWARE, OR (iii) THAT ANY SERVICES OR SOFTWARE WILL MEET ANY USER’S REQUIREMENTS, OR BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE. ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS AT YOUR OWN DISCRETION AND RISK. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOU RESULTING FROM THE USE OF ANY SERVICES OR SOFTWARE. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF ANY SERVICES OR SOFTWARE REMAINS WITH YOU. CAPSTORM DOES NOT ASSUME ANY RESPONSIBILITY FOR RETENTION OF ANY DATA, INCLUDING CUSTOMER DATA, USER INFORMATION, OR COMMUNICATIONS BETWEEN USERS. USE OF ANY SERVICES AND SOFTWARE IS AT YOUR SOLE RISK.
To the extent not prohibited by applicable Law, you agree to indemnify, defend, and hold CapStorm and its affiliates and each of our licensors and suppliers (“Indemnified Parties”) harmless, including any officers, directors, employees, shareholders, members, consultants, and agents of the Indemnified Parties, from any third party allegation, claim, proceeding, liability, damage, or cost (including reasonable attorneys’ fees) arising out of or related to (i) your or your End User’s use of the Software or any services by CapStorm, (ii) your or your End User’s breach of this EULA or violation of applicable Law, (iii) your or your End User’s infringement or violation of any Proprietary Rights or other right of any person or entity, (iv) your relationship with your End User or any dispute between you and your End User, or (v) a personal injury or property damage to a third party relating to your or your End User’s acts or omissions.
LIMITATION ON LIABILITY
READ THIS SECTION CAREFULLY AS IT LIMITS OUR LIABILITY TO YOU. CAPSTORM AND ITS AFFILIATES AND EACH OF THEIR LICENSORS, AND SUPPLIERS WILL NOT BE LIABLE FOR ANY:
- SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES;
- LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF BUSINESS OPPORTUNITY;
- UNAUTHORIZED ACCESS TO, LOSS OF, DELETION OF, OR ALTERATION OF SYSTEM DATA OR CUSTOMER DATA;
- COSTS RELATED TO THE PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES;
- TERMINATION, SUSPENSION, DISCONTINUANCE, OR DISCONNECTION OF THE SOFTWARE;
- A FAILURE OF YOUR INTERNET SERVICES, DOWNTIME, OR MAINTENANCE;
- OUR FAILURE TO PROVIDE TECHNICAL OR OTHER SUPPORT SERVICES; OR
- DAMAGES, IN THE AGGREGATE FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS EULA, EXCEEDING THE AMOUNT ACTUALLY PAID BY YOU UNDER THIS EULA TO CAPSTORM FOR THE SOFTWARE (IF ANY) IN THE THIRTY (30) DAYS PRECEDING THE EVENT OR CIRCUMSTANCES GIVING RISE TO SUCH CLAIMS.
THESE EXCLUSION OF DAMAGES AND LIMITATIONS ON AVAILABLE DAMAGES APPLY TO ALL CLAIMS, OBLIGATIONS, AND LIABILITIES ARISING OUT OF OR RELATED TO THIS EULA, AND WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, CONTRACT, OR ANY OTHER LEGAL THEORY, EVEN IF CAPSTORM, ITS AFFILIATES, OR OUR LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THAT SUCH DAMAGES MAY BE INCURRED BY YOU AND EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE.
BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW CERTAIN EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY, THE ABOVE LIMITATION ONLY APPLIES TO YOU TO THE EXTENT THAT THE EXCLUSIONS OF DAMAGES OR LIMITATIONS ON LIABILITY ARE NOT PROHIBITED UNDER APPLICABLE LAW.
DISPUTE RESOLUTION, ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER
You agree to resolve certain disputes with CapStorm through binding arbitration (“Arbitration Agreement”). Arbitration means that an arbitrator, and not a judge or a jury, will decide the dispute. The parties expressly waive the right to bring or participate in any kind of class, collective, or mass action, private attorney general action, or any other representative action. This Arbitration Agreement supersedes all prior versions.
21.1 Covered Disputes. You and CapStorm agree that any dispute or claim between you and CapStorm arising out of or relating to this EULA (a “Dispute”), including any related software, hardware, integrations, services, advertising or marketing communications, your account, or any aspects of your relationship or transactions with CapStorm, will be resolved by binding arbitration, rather than in court. For purposes of this Arbitration Agreement, a Dispute will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this EULA as well as claims that may arise after the termination of this EULA.
21.2 Exceptions to Arbitration. This Arbitration Agreement shall not require arbitration of the following types of claims brought by either you or CapStorm: (i) small claims court actions, if the requirements of the court are met and the claims are only on an individual basis; and (ii) claims pertaining to intellectual property rights, including trademarks, trade dress, domain names, trade secrets, copyrights and patents.
21.3 Informal Dispute Resolution First. We want to address any Disputes without needing arbitration. If you have a Dispute with CapStorm, prior to initiating arbitration, you agree to mail an individualized request (“Pre-Arbitration Demand”) to ATTN: Legal Department, CapStorm, LLC, P.O. Box 1159, Santa Rosa Beach, FL 324 so that we can work together to resolve the Dispute. A Pre-Arbitration Demand is only valid when it pertains to, and is on behalf of, a single individual. A Pre-Arbitration Demand brought on behalf of multiple individuals is invalid as to all. The Pre-Arbitration Demand must include: (i) your name, telephone number, mailing address, and email address associated with your account; (ii) the name, telephone number, mailing address and email address of your counsel, if any; (iii) a description of your Dispute; and (iv) your signature. Likewise, if CapStorm has a Dispute with you, CapStorm will send an email with its individualized Pre-Arbitration Demand, including the requirements listed above, to the email address associated with your CapStorm account. If the Dispute is not resolved within sixty (60) calendar days of when either you or CapStorm submitted a Pre-Arbitration Demand, an arbitration can be brought. If you or CapStorm have a Dispute involving claims under the exception to arbitration in Section 27.2(2), then this Section 27.3 does not apply to such Dispute. You agree that compliance with this Section 27.3 is a condition precedent to commencing arbitration, and that the arbitrator shall dismiss any arbitration filed without fully and completely complying with these informal dispute resolution procedures.
21.4 Arbitration Procedure. If, after completing the informal dispute resolution process set out in Section 27.3, either you or CapStorm wishes to initiate arbitration, the initiating party must serve the other party with a demand for arbitration. Any demand for arbitration by you shall be sent to the CapStorm Legal Department address in Section 27.3. CapStorm will send any arbitration demand to the email address associated with your CapStorm account or to your counsel, if any. You and CapStorm agree that the Federal Arbitration Act (“FAA”) governs this Arbitration Agreement. If the FAA cannot apply for whatever reason, then the state laws governing arbitration procedures in the State of Georgia, U.S.A., apply.
Arbitration shall be administered by JAMS (“JAMS”) under its Arbitration Rules. This EULA will govern to the extent it conflicts with the arbitration provider’s rules. If the applicable arbitration provider is not available to arbitrate, the parties will select an alternative arbitration provider. If the parties cannot agree on an appropriate alternative arbitration provider, then the parties will ask a court of competent jurisdiction to appoint an arbitrator pursuant to 9 U.S.C. § 5.
Arbitration hearings will take place at in Atlanta, Fulton County, Georgia, U.S.A. by default, unless you and CapStorm agree upon videoconferencing or another location in writing. A single arbitrator will be appointed. The arbitrator may award damages, declaratory or injunctive relief, and recoverable costs. Any arbitration award may be enforced (such as through a judgment) in any court with jurisdiction. An arbitration award shall have no preclusive effect in another arbitration or court proceeding involving CapStorm and a different individual. The arbitrator shall have the exclusive authority to resolve all threshold arbitrability issues, including whether this EULA is applicable, unconscionable, or enforceable, as well as any defense to arbitration. However, a court has exclusive authority to rule on the Mass Action Waiver in Section 27.6, including any claim that the section is unenforceable, illegal, void or voidable, or that it has been breached.
If a request to proceed in small claims court (see Section 27.2(1)), is made after an arbitration has been initiated, but before an arbitrator has been appointed, such arbitration shall be administratively closed. Any controversy over the small claims court’s jurisdiction shall be determined by the small claims court. If you or CapStorm challenges the small claims court election in your Dispute, and a court of competent jurisdiction determines that the small claims court election is unenforceable, then such election shall be severed from this Arbitration Agreement as to your Dispute. However, such court determination shall have no preclusive effect in another arbitration or court proceeding involving CapStorm and a different individual.
21.5 Jury Trial Waiver. You and CapStorm hereby waive any constitutional and statutory rights to sue in court and have a trial in front of a judge or a jury. You and CapStorm are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 27.2 above. Court review of an arbitration award is subject to very limited review. Discovery may be limited in arbitration, and procedures are more streamlined than in court.
21.6 Mass Action Waiver. You and CapStorm agree that, except as specified in Section 27.7 below, each of us may bring claims against the other only on an individual basis and not on a class, collective, representative, or mass action basis, and the parties hereby waive all rights to have any Dispute be brought, heard, administered, resolved, or arbitrated on a class, collective, representative, or mass action basis. Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this Section 27.6 are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and CapStorm agree that that particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and shall be pursued in the state or federal courts located in Atlanta, Fulton County, Georgia, U.S.A. This subsection does not prevent you or CapStorm from participating in a class-wide settlement of claims.
21.7 Arbitration Costs. Your responsibility to pay any filing, administrative, and arbitrator costs will be solely as set forth in the applicable arbitration provider’s rules. If you have a gross monthly income of less than 300% of the federal poverty guidelines, you may be entitled to a waiver of certain arbitration costs.
21.8 Requirement to File Within One Year. To the extent permitted by applicable Law, and notwithstanding any other statute of limitations, any claim or cause of action under this EULA (with the exception of disputes under Section 27.2(2)) must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be permanently barred. The statute of limitations and any arbitration cost deadlines shall be tolled while the parties engage in the informal dispute resolution process required by Section 27.3 above.
21.9 Severability. Except as provided in Section 27.6 above, if any provision of this Arbitration Agreement is found to be illegal or unenforceable, then that provision will be severed; however, the remaining provisions shall still apply and shall be interpreted to achieve the closest possible intent to the original intent of this section, inclusive of the severed provision.
ANONYMIZED AND AGGREGATED DATA
You agree that CapStorm may obtain and aggregate technical and other data about your and your End Users use of the Software on a de-identified or anonymized basis (“Aggregated Anonymous Data”), and CapStorm may use the Aggregated Anonymous Data in accordance with applicable Law, including to analyze, develop, improve, support, and operate any services and software provided to you or other unrelated customers, during and after the Trial Use Term, including to generate industry benchmarks or best practices guidance, recommendations, or similar reports.
US STATE PRIVACY LAWS
You acknowledge and agree that we do not process “personal information” (as that term is defined by the California Consumer Privacy Act of 2018, as amended by the California Privacy Rights Act of 2020) on your behalf, and (ii) we do not process “personal data” (as those terms are defined by other applicable US state data privacy Laws) on your behalf.
You grant CapStorm permission and the right to (i) identify you as a customer and to use your logo across CapStorm marketing materials (e.g., the CapStorm Website, emails, presentations, brochures), (ii) develop content around your experience as a CapStorm customer (e.g., a written case study or video case study), and (iii) the right to contact you via e-mail or telephone about CapStorm products and services. Any content created under the foregoing clause (ii) of this Section will be created in cooperation with you and used only upon your written approval. CapStorm will use any trademarks provided by you pursuant to clause (i) of this Section in accordance with any reasonable brand guidelines that you provide to us in writing prior to our use.
25.1 Assignment; Successors and Assigns. You may not assign your rights or transfer any of your obligations under this EULA without our prior express written consent. Any purported assignment or transfer in violation of this section is null and void. We may assign our rights or transfer any or all of our obligations under this EULA at any time, without prior notice to you, (i) in the event of a merger, acquisition, or sale of all or substantially all of our assets, or (ii) to our affiliate. This EULA is binding upon, and inures to the benefit of, the parties and their respective permitted successors and assigns.
25.2 Governing Law; Jurisdiction; and Venue. The laws of the State of Georgia, U.S.A., regardless of conflict of laws principles, govern all matters arising out of or relating to this EULA, including its interpretation, construction, performance, and enforcement, except that the Federal Arbitration Act governs provisions relating to arbitration. Except as otherwise provided in Section 21, the parties consent to the exclusive jurisdiction and venue of the state courts located in and serving Atlanta, Fulton County, Georgia, U.S.A., and the federal courts in the Northern District of Georgia. Notwithstanding the above, you and CapStorm agree that this paragraph does not preclude either you or us from initiating any proceedings (including nullity proceedings) before the United States Patent Trial and Appeal Board (PTAB), United States Trademark Trial and Appeal Boards (TTAB), the United States Patent and Trademark Office (PTO), the United States Copyright Office, or any foreign patent, trademark, or copyright office, as long as any such proceeding relates to the validity, enforceability, or unenforceability of any copyright, patent, trademark, or other intellectual property right owned or assigned to either you or CapStorm. If you are acting as a consumer under this EULA and are domiciled in a Member State of the European Union or the European Economic Area, or in the United Kingdom, the foregoing choice of governing law will not deprive you of the protection afforded to you by provisions that cannot be derogated from by agreement by virtue of the Laws applicable to you where you habitually reside.
25.3 Language and Translations. All notices and communications under this EULA must be provided in the English language. If we provide a translation of the English-language version of this EULA, then the English-language version of this EULA controls in the event of conflict or inconsistency.
25.4 Merger; Integration. This EULA constitutes and embodies the final agreement between you and CapStorm and contains the complete and exclusive expression of your and our agreement pertaining to its subject matter. All prior or contemporaneous writings, negotiations, and discussions between you and CapStorm regarding the subject matter hereof are expressly merged into and superseded by this EULA. We expressly object to and do not agree to any terms and conditions presented by you that are in addition to or different from those contained in this EULA. You acknowledge that no terms and conditions presented by you that purport to add to, modify, or vary the terms and conditions of this EULA will be binding on us, including (i) text or information set forth on any purchase order, email correspondence, invoice or invoice process, or preprinted form, or (ii) terms and conditions of any request for proposal, request for bid, request for information, or questionnaire. In entering into this EULA, neither you nor CapStorm has relied upon any statement, representation, warranty, or agreement of the other party except to the extent expressly contained in this EULA.
25.5 No Agency Relationship. CapStorm and you are independent contractors and do not intend to create an express or implied agency relationship by entering into this EULA, whether arising under federal or state common law of agency.
25.6 No Third-Party Rights or Remedies. This EULA does not and is not intended to confer any enforceable rights or remedies upon any person other than CapStorm and you.
25.7 Notice. We may give notice to you by (i) electronic mail to your email address on record in your account information, (ii) written communication sent by letter delivered by a nationally recognized overnight delivery service, or (iii) first-class postage prepaid mail to your address on record in your account information. You are responsible for ensuring that your email address and property address on record with us are current. You agree that any notice sent to the then-current email or property address in our systems is adequate and binding notice upon you. You will provide notice to us (such notice is deemed given when received by CapStorm) by letter delivered by a nationally recognized overnight delivery service or certified U.S. Mail, postage prepaid, return receipt requested, to CapStorm at “Attention Legal Dept., CapStorm, LLC, P.O. Box 1159, Santa Rosa Beach, FL 324.”
25.8 Severability. If any provision of this EULA is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of this EULA are not affected or impaired in any way. You and CapStorm intend that any invalid, illegal, or unenforceable portions of this EULA will be interpreted to provide the greatest effect and intent of the original. If a construction of the invalid, illegal, or unenforceable portion is not possible, the invalid, illegal, or unenforceable portion will be severed from this EULA and the rest of this EULA will remain in full force and effect.
25.9 Survival. All sections of this EULA which, by their nature should survive termination or expiration, will survive, including sections pertaining to confidential information, CapStorm’s Proprietary Rights, license rights granted by you to CapStorm, payment obligations, warranty disclaimers, indemnification, arbitration, and the limitation on liability.
25.10 Waiver. CapStorm’s failure to exercise any right or enforce any condition or provision under this EULA does not operate as a current or future waiver. For any waiver to be effective against us, the waiver must be in a writing signed by CapStorm’s duly authorized representative.
25.11 Interpretation. Any heading, caption, or section title contained herein is for convenience only, and in no way defines or explains any section or provision. All terms defined in the singular will have the same meanings when used in the plural and vice versa, where appropriate and unless otherwise specified. Any use of the term “e.g.” or “including” or variations thereof in this EULA will be construed as if followed by the phrase “without limitation.”
The following definitions apply to this EULA.
“Customer Data” means information provided to CapStorm so that CapStorm can fulfill the terms of this EULA and provide access to the Software (e.g., company name, address, taxpayer ID number, contact name and information).
“End User” means the individual person who uses the Software.
“Law” means all U.S. or non-U.S. national, regional, state, provincial or local law, statute, rule, regulation, ordinance, administrative ruling, judgment, decree, order, directive, or policy applicable to CapStorm’s provision of and your use of the Software.
“Proprietary Rights” means any copyright, patent, trade secret, know-how, trademark, servicemark, trade name, rights of publicity, or other intellectual property or proprietary rights.
“Taxes and Fees” means all applicable sales, use, environmental or regulatory taxes (including VAT), fees, tariffs, duties (including customs duties), or other charges, surcharges or assessments of similar nature (including any penalty or interest payable in connection with any failure to pay or any delay in paying any of the foregoing) levied on or otherwise associated with the provision of the Software or any services to you or your use thereof (exclusive of any income tax imposed on CapStorm).